It is curious that the more astute Members of the United States Senate have not, long ago, repudiated that Body’s 60-member-filibuster-cloture rule. The justification for the filibuster, as traditionally understood, had been that it permitted a Senator to present, at some length, an unpopular position. But the way the threat of a filibuster is now exploited usually discourages genuine debate, proceeding as it does on the somewhat arrogant assumption that no position has to be taken seriously if it does not already have three-fifths of the Senate in its support.

Making matters even worse, as well as exhibiting an affront to traditional republican principles, is that the current Senate rule is probably unconstitutional. After all, the Framers of the Constitution obviously assumed that the majority should rule, except in those few clearly specified instances which require what we now call a “supermajority.” The troubling state of affairs now is, however, that it can take almost as many votes to pass a bill in the Senate as it does to override a Presidential veto of a bill passed by both Houses of Congress.

One of these years, a point of order should be raised, submitting that the Constitution assumes that a simple majority should suffice for the ordinary business of the Senate, with the understanding that genuine debate should of course be permitted at whatever length may be necessary to examine properly the issues of the day. Such a motion, favorably ruled on by the Vice-President presiding over that body, should itself not require more than a majority vote for it to carry. The Senate can thereafter go on to perform its legislative duties in a proper manner.

Respectfully yours,

George Anastaplo,

Professor of Law,

Loyola University of Chicago

This letter was prompted by an article in the New York Times, September 17, 2009 [p. A20], “For Senate Democrats, 60 Is the Magic Number.”